Delhi District Court
Satbir Bhardwaj vs Narender Kumar Sharma on 10 November, 2014
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
ADDITIONAL DISTRICT JUDGE01 (CENTRAL)
TIS HAZARI COURTS, DELHI
C.S. No. 154/2009
Unique I. D. No. 02401C0852822003
Satbir Bhardwaj,
S/o Sh. Atar Singh Bhardwaj,
R/o 341/39C, Mangal Sen Building,
Bagh Kare Khan, Kishan Ganj,
Delhi.
......Plaintiff
Versus
1.Narender Kumar Sharma,
(Since deceased)
Represented by LRs :
i)Giyanwati,
Widow of late Sh. Narender Kumar Sharma.
ii)Sanjay Sharma,
S/o late Sh. Narender Kumar Sharma.
iii)Ajay,
S/o late Sh. Narender Kumar Sharma.
CS No. 154/2009
Satbir Bhardwaj Vs. Narender Kumar Sharma 1/28
iv)Naveen,
S/o late Sh. Narender Kumar Sharma.
v)Renu,
D/o late Sh. Narender Kumar Sharma.
vi)Rachna,
D/o late Sh. Narender Kumar Sharma.
vii)Rekha,
D/o late Sh. Narender Kumar Sharma,
(Since deceased) represented by LRs :
a)Master Prabhat (Son)
b)Master Vinay (Son)
c)Master Neeraj (Son)
Through their guardian
Sh. Surender Kumar Sharma,
R/o C152, Gali No5, New Usmanpur,
Delhi.
2.Jain Cooperative Bank Ltd.,
Through its General Manager,
80, Darya Ganj, New Delhi.
.......Defendants
CS No. 154/2009
Satbir Bhardwaj Vs. Narender Kumar Sharma 2/28
SUIT FOR SPECIFIC PERFORMANCE, CANCELLATION OF
MORTGAGE DEED AND FOR RECOVERY OF DAMAGES
Date of institution of suit : 18.02.2003
Date of reserving the judgment : 10.11.2014
Date of pronouncement of judgment : 10.11.2014
JUDGMENT
1. The plaintiff has brought the present suit for specific performance, cancellation of mortgage deed and recovery of damages. The facts as detailed in the plaint are that defendant no1 was allotted property/flat no.18, BlockB, Amba Bagh, Kishan Ganj, Delhi, comprising of one room, M.P. Room, WC and bath room vide conveyance deed dated 19.04.2001 and by virtue of the same he became the owner thereof. The defendant no1 agreed to sell the above mentioned property to the plaintiff and agreement to sell dated 28.03.2001 was executed between the parties for consideration of Rs.3,50,000/ (Three Lakhs Fifty thousand only). The terms and conditions of the agreement have been referred to. It is further asserted CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 3/28 that alongwith agreement to sell, defendant no1 also executed Receipt of the consideration amount, registered General Power of attorney, registered Will, Special Power of Attorney, Affidavit/undertaking in favour of the plaintiff and the possession was also handed over to the plaintiff vide separate possession letter. The plaintiff also obtained the affidavit of sons of defendant no1, confirming the execution of aforesaid documents. The defendant no1 requested the plaintiff to retain the possession of the property for few months so as to enable him to arrange for an alternative accommodation for which he agreed to pay a sum of Rs.1000/ per month as user charges. Since, the plaintiff was not requiring the possession of the premises at that stage, he allowed the defendant no1 to retain the possession. However, in October, 2001, when plaintiff asked the defendant to hand over the possession, he avoided and delayed the matter, though he had paid user charges for the period of six months.
2. It also came to the knowledge of the plaintiff that defendant had secured a loan of Rs. 3 Lakhs from defendant no2 by posing himself to be the absolute owner in possession of the property. He also furnished CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 4/28 copies of documents to defendant no2 alongwith valuation report, verification report, income tax returns, conveyance deed etc. and on approval of the loan he executed registered mortgage deed dated 08.11.2001. The defendant no1 concealed the factum of execution of documents in favour of the plaintiff while securing loan from defendant no2. The plaintiff on coming to know about these fraudulent acts of defendant no1, lodged a report with SHO P.S. Sarai Rohilla on 11.01.2002 on which FIR NO. 126/2002 was registered u/s 420 IPC and charge sheet was also filed against the defendant and matter is pending adjudication.
3. The plaintiff also served legal notice dated 12.02.2002 through his advocate calling upon defendant no1 for handing over the possession of property in dispute and to execute the necessary documents of transfer in favour of the plaintiff. The defendant no1 replied the notice through his advocate refuting the claims of the plaintiff and making wild allegations therein about the loan transaction between the plaintiff and the defendant.
CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 5/28
4. It is further asserted by plaintiff that he has been ready and willing to perform his part of obligation, whereas defendant has failed to fulfill his part of obligation under the said agreement and refused to execute the sale deed and rather fraudulently mortgaged the property in favour of defendant no2. The possession of defendant no1 is illegal as his permissive possession came to an end after the expiry of six months period calculated from 28.03.2001 and as such he is in unauthorized occupation of the same and liable to pay damages from 01.10.2001.
5. In the prayer clause, the plaintiff has prayed for a decree of specific performance, thereby directing defendant no1 to execute required sale deed with respect to the suit property in favour of the plaintiff in terms of Agreement to Sell dated 28.03.2001 or alternatively to be executed by the court in accordance with law. Further, the decree of declaration is sought with respect to the mortgage deed dated 08.11.2001 that same be declared as null and void.
6. The defendant no1 contested the claim of the plaintiff by filing written statement taking preliminary objections about concealment CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 6/28 of material facts by the plaintiff. According to the defendant no1, he is the owner of the suit property and has been residing therein with his family members and plaintiff has got no concern with the property. The defendant took loan of Rs.1 Lakh from the plaintiff and executed various documents as collateral security on the pretext that on repayment of loan amount, the documents will be returned by the plaintiff and he shall not claim any right, title or interest therein. The loan amount has been paid with interest to the plaintiff by defendant no1 and plaintiff assured to return the documents. The plaintiff later on refused to return the documents despite various requests. It is further contended that General Power of attorney and Will were executed and registered in favour of the plaintiff but intention was not to sell the property it was only with a purpose that plaintiff believes that his money would be returned by defendant no1. Thereafter, on repayment of loan amount, defendant no1 got the GPA and Will cancelled. The defendant no1 is an old man of 70 years with no knowledge of English and has been suffering from various ailments and is disabled up to 70% and not in good state of mind. The plaintiff after getting executed GPA and Will came with gunda elements and got several documents signed at gun point. The defendant CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 7/28 no1 made complaints to the police but no action was taken due to plaintiff's relatives in Delhi Police. No money was received by defendant no1 from the plaintiff and there has been no question of sale of property in question. The defendant no1 has further asserted that fraud has been played and documents have not been returned by the plaintiff. On merits, it is denied that defendant no1 agreed to sell the property in question to the plaintiff and the factum of transaction of loan is reasserted. The securing of loan from defendant no2 has been admitted by giving papers of the property by defendant no1. It is denied that possession was ever handed over to the plaintiff of the suit property and further it is prayed that suit of the plaintiff be dismissed being false and frivolous.
7. The defendant no2 filed separate written statement taking preliminary objections about no privity of contract and suit is bad for misjoinder of parties. It is contended that defendant no1 has taken loan of Rs. 3 Lakhs against the registered mortgage deed dated 08.11.2001 and bank has got the first charge over the same. The defendant no1 is defaulter in the payment of loan and present suit has been filed by the plaintiff in collusion with defendant no1. On merits, it is mentioned that CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 8/28 defendant no1 has filed the affidavit dated 08.11.2001 to the effect that property in question is free from all sorts of encumbrances such as sale, mortgage, transfer, lien, decree, gift etc. It is denied that property was sold by defendant no1 to the plaintiff. It is asserted that defendant no1 has filed the original conveyance deed with the bank and he was also in possession of the same. Further denying the claim of the plaintiff, it is prayed that suit be dismissed with costs.
8. The plaintiff filed separate replications to the written statements of defendants, denying the contentions of written statement and reiterating those of the plaint.
9. From the pleadings of the parties, following issues were framed vide order dated 11.09.2003 :
1)Whether the defendant no1 executed an agreement to sell dated 28.03.2001 in respect of his property in favour of the plaintiff for consideration of Rs.3,50,000/? OPP
2)Whether the plaintiff has paid entire consideration of Rs.3,50,000/ to the defendant CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 9/28 no1 who has acknowledged the same by executing the receipt? OPP
3)Whether the plaintiff remained ready and willing to perform his part of the contract and is still ready to do the same? OPP
4)Whether the defendant no1 raised a sum of Rs.1,00,000/ as loan from the defendant and has returned a sum of Rs.1,30,000/. If so, what is its effects? OPD
5)Whether the defendant no1 has signed the documents i.e. GPA, Will and other connected documents in favour of the plaintiff as a security of the loan. If so, what is its effects?
OPD
6)Whether the plaintiff is entitled a decree for specific performance as per the terms of the agreement to sell dated 28.03.2001? OPD
7)Whether the mortgage deed dated 11.08.2001 executed by the defendant no1 in favour of the defendant no.2 for securing loan Rs.2,00,000/ is liable to be declared as null, void and cancelled? OPP
8)Relief.
CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 10/28
10. In evidence, plaintiff examined himself vide affidavit EX P1 and relied upon Agreement to Sell dated 28.03.2001 EX PW1/1, Receipt EX PW1/2, registered General Power of attorney EX PW1/3, Will EX PW1/4, Special Power of Attorney EX PW1/5, Affidavit EX PW1/6, possession letter EX PW1/7, affidavit of Ajay Kumar Sharma, Naveen Sharma and Sanjay Kishan (sons of defendant no1) EX PW1/8, the complaints filed by the plaintiff EX PW1/11, the certified copy of charge sheet MarkA, legal notice EX PW1/13 and reply EX PW1/14. The plaintiff has been crossexamined at length on behalf of defendant no1.
11. PW2 Sh. Ramesh Kumar Achhra, UDC from SubRegistrar OfficeII, Janak Puri, New Delhi, brought the GPA and Will executed on 28.03.2001 and proved the same vide EX PW1/3 and 4. The witness has been crossexamined on behalf of the defendant.
12. The plaintiff's evidence was closed on 24.05.2014. Thereafter, the defendant expired and an application u/o 22 rule 2 CPC CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 11/28 was moved and legal heirs of the defendants were brought on record. On the application of legal heirs, the opportunity was granted to file written statement and further to recrossexamine the plaintiff.
13. In the written statement, legal heirs have taken preliminary objections that the property in question never vested in the plaintiff nor the possession was handed over and therefore suit of specific performance is not maintainable. The plaintiff has not approached the court with clean hands. The plaintiff has been doing the business of moneylending without any license from the authorities concerned and has been grabbing the land/property of innocent persons, who used to obtain loan from him. The plaintiff used to get signatures or thumb impression of the needy persons, who obtain loan from him on certain documents posing it to be a sale of the property, whereas in reality they were loan transactions. The plaintiff on the pretext of executing loan documents might have taken the father of the defendants, who was illiterate to the office of SubRegistrar concerned and got his signatures on various documents by dominating him. The property was never sold by the defendant no1 to the plaintiff nor possession was delivered at any CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 12/28 point of time. The deceased father of the defendants had borrowed loan of Rs.1 Lakh, which was repaid alongwith the interest but the documents were not returned. The suit is stated to be without cause of action and liable to be rejected u/o 7 rule 11 CPC. The documents were executed by the father of the defendants as collateral security and plaintiff assured to return all the documents but the plaintiff did not return the documents with malafide intention. The father of the defendant got GPA and Will cancelled. It is repeated that father of the defendant was illiterate, aged and disabled person not having proper state of mind. The suit has been filed only to harass the defendants. It is also contended that plaintiff came with gunda elements to the residence of defendant and got some documents signed at gun point and the complaint was made to the police on 12.07.2001 but no action was taken. Even, subsequently the complaints were lodged against the plaintiff but to no avail. The plaintiff has played fraud upon the defendant and further denying the claim of the plaintiff with respect to the property in question and about the documents, it is prayed that suit of the plaintiff be dismissed and plaintiff is liable to be prosecuted for the offence of forgery.
CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 13/28
14. The plaintiff/PW1 was recalled for crossexamination on behalf of the LRs of defendant no1 on 08.12.2011.
15. On the other hand, Sh. Naveen Sharma (son of defendant no1) appeared as DW1 on behalf of the defendant and examined himself vide affidavit EX DW1/A. He relied upon documents EX PW1/D1, which is copy of complaint u/s 200 Cr. P.C. read with Section 138 N.I. Act filed by the plaintiff against some Sarad Kumar, EX PW1/D2 is another complaint filed by plaintiff against Deepak Gupta. Similarly, EX PW1/D3 and EX PW1/D4 are complaints moved by the plaintiff against other persons, EX DW1/1 cancellation of GPA, DW1/2 cancellation of Will and copy of legal notice EX DW1/3. The witness has been crossexamined on behalf of the plaintiff.
No other evidence was led by the defendant and D.E. was closed.
16. I have heard Sh. Om Prakash Verma, Ld. counsel for plaintiff and given due consideration to the facts and circumstances of the case, pleadings of the parties, evidence and also examined the record of CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 14/28 the case. I have also gone through the written arguments filed on behalf of both the parties.
17. My findings on the above mentioned issues are as follows: Issue No(1) Whether the defendant no1 executed an agreement to sell dated 28.03.2001 in respect of his property in favour of the plaintiff for consideration of Rs.3,50,000/?
OPP
18. It is the claim of the plaintiff that he purchased the suit property from defendant no1 by virtue of Agreement to Sell dated 28.03.2001 EX PW1/1 and the possession (symbolic) was handed over to him on the same date and entire consideration amount was paid. It is also asserted by the plaintiff that alongwith the Agreement to Sell EX PW1/1, registered General Power of Attorney EX PW1/3 and Will EX PW1/4 were executed and also the Receipt EX PW1/2, Affidavit EX PW1/6, Special Power of Attorney EX PW1/5 and Possession Letter CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 15/28 EX PW1/7. It is also the case of the plaintiff that even sons of defendant no1 executed affidavit with respect to the transaction vide EX PW1/8.
19. On the other hand, it has been the contention of defendant no1 and his legal heirs that documents were executed but there was no intention to sell the property. The defendant no1 took a loan of Rs.1 Lakh and to secure the loan, the documents were executed to assure the plaintiff about repayment of the loan. It is asserted that GPA and Will were executed and registered but thereafter the remaining documents were got signed from defendant no1 on gunpoint by the plaintiff. It is also asserted that the loan has been repaid but despite requests the plaintiff refused to return the documents to the defendant no1.
20. I have considered, analyzed and examined the evidence of both the sides on this issue. The original documents (EX PW1/1 to EX PW1/7) were produced from the court file of criminal case and were proved on record. The execution of documents is not disputed in the manner that no suggestion has been given that the documents have not been signed by defendant no1. As per the contents and language used in CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 16/28 the documents, it is clear that the intention of the parties was to sell and purchase the property in question and therefore the defendant no1 is clearly wrong in alleging that he had no intention to sell the property. The contention of the defendant with respect to the signing of documents on gunpoint have also not been taken up properly during the evidence as no such suggestion was given to the plaintiff during his cross examination either by the defendant no1 or by his LRs. The defendants have also failed to produce any evidence with respect to the complaints, allegedly made against the plaintiff in this regard.
21. On the other hand, plaintiff has been able to bring cogent and sufficient evidence on record with respect to the execution of documents by the defendant no1. It is also strengthened with the fact that plaintiff lodged a proper complaint against the defendant on coming to know about his securing another loan from defendant no2 by executing mortgage deed and certified copy of FIR MarkA and charge sheet EX PW1/12, are the sufficient evidence on this aspect. On examining the crossexamination of plaintiff, I find that defendant or his LRs have failed to impeach the testimony of the plaintiff, which is reliable and trustworthy.
CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 17/28
22. Whereas, on perusal of evidence of the defendants, I find that they have failed to remain consistent on their defence pleas and have taken contradictory stands with respect to the facts of the matter. In written statements it has been pleaded that plaintiff got the signatures of defendant no1 on the documents on gunpoint, whereas, nothing of this sort is testified or mentioned in the affidavit EX DW1/A. It is the contention of DW1 in his affidavit that his father executed the documents with the intention that same is essential for taking the loan and will be used only as the collateral security and the documents will be returned after the payment is made. There is nothing on record to show that defendants ever issued any notice to the plaintiff seeking return of documents on repayment of loan. No witness is examined to depose about the fact that defendant no1 took loan from the plaintiff and repaid the same. Also, all these pleas cannot be taken simultaneously as they are inconsistent to each other.
23. The legal heirs have also set up the plea of cancellation of Will and GPA vide EX EX DW1/1 and DW1/2. However, the same CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 18/28 have not been proved to be executed by defendant no1. Interestingly, these documents are dated 17.04.2002, whereas the crossexamination of plaintiff on behalf of defendant no1 was conducted in the year 2003 and these documents were never put to the plaintiff. It is only after the defendant no1 expired that the LRs came forward with these documents but have failed to prove the same as per law of evidence. Otherwise also, the cancellation of GPA and Will will not affect the merits of the case as it is concerned with Agreement to Sell and specific performance of the same. On examining the crossexamination of PW1, particularly conducted on behalf of defendant no1 on 08.12.2003 and 25.03.2004, I find that case of the plaintiff more or less stands admitted and it is admitted that the documents of sale of the property were executed. It has been suggested to PW1 that he never asked defendant no1 to perform his part of contract as per the agreement, thereby admitted the nature of transaction. In this way, the defendants have failed to controvert or rebut the consistent and confident testimony of PW1/Plaintiff and it is established that plaintiff and defendant no1 intended to transfer the property in question.
CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 19/28
24. In view of aforesaid discussion, it is proved through oral as well as documentary evidence that defendant no1 executed Agreement to Sell in favour of plaintiff for consideration of Rs. 3,50,000/.
Issue No(2) Whether the plaintiff has paid entire consideration of Rs.3,50,000/ to the defendant no1 who has acknowledged the same by executing the receipt? OPP
25. So far as the execution of Receipt EX PW1/2 is concerned, the plaintiff has remained consistent and confident, whereas the claim of defendant no1 that he executed the documents as a collateral security is not found to be sustainable. In view of my findings with respect to the issue no1, I conclude that receipt of Rs. 3,50,000/ stands proved, established on record and it is therefore clear that consideration amount has been paid to defendant no1 by the plaintiff. The issue is decided in favour of plaintiff and against the defendants.
CS No. 154/2009
Satbir Bhardwaj Vs. Narender Kumar Sharma 20/28
Issue No(3)
Whether the plaintiff remained ready and
willing to perform his part of the contract
and is still ready to do the same? OPP
26. The plaintiff has pleaded in his plaint that he has been ready and willing to perform his part of agreement and the filing of the suit itself is an indication that plaintiff seeks to get the sale deed executed in terms of the agreement to sell dated 28.03.2001. The execution of agreement to sell is not disputed on behalf of the defendants, although it is stated that intention was not to sell the property and that the documents were executed only for the purposes of securing the loan. I find no merit or substance in the defence pleas taken by the defendants as otherwise same have not been proved on record. The language and the contents of the documents makes it evident that defendant no1 agreed to sell the property for consideration and agreed to transfer the property by signing proper documents in favour of the plaintiff. The defendant no1 was bound to execute sale deed but he questioned the transaction itself by stating that it was not meant for sale or purchase of the property but it was merely a loan transaction. It stands clearly established on record that CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 21/28 plaintiff had done his part of obligation under the agreement and defendant no1 was required to execute the sale deed in favour of the plaintiff. The evidence of plaintiff is found to have ring of truth and reliability, whereas defendants have failed to remain confident and consistent on their pleas. The complaints made by the plaintiff shows that plaintiff was serious about the transaction and wanted to get the sale deed executed. I, therefore, hold that plaintiff has been willing to perform his obligation under the contract. Issue is answered accordingly.
Issue No(4) Whether the defendant no1 raised a sum of Rs.1,00,000/ as loan from the defendant and has returned a sum of Rs.1,30,000/. If so, what is its effects? OPD
27. It has been the contention of defendant no1 that he took a loan of Rs. 1 Lakh from the plaintiff and executed the documents as collateral security with the assurance that documents would be returned after the repayment of the loan. It is further contended that loan amount CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 22/28 has been paid to the tune of Rs. 1,30,000/ but the plaintiff has refused to return the documents despite requests. The burden has been upon the defendants to establish this issue. However, no independent evidence has been brought on record nor any document is placed on record to show that there was any transaction of loan between the parties. The plaintiff has strongly denied the pleas taken by the defendant and also the contents of the documents clearly negate the pleas of the defendants. It is clear that transaction between the parties was with respect to the sale of the suit property and it was never the transaction of loan.
28. The defendants have admitted having secured loan subsequently from defendant no2 by executing mortgage deed which shows that defendant no1 was able to understand the nature of transaction and the documents executed by him. There is no merit in the pleas taken by the defendants that defendant no1 was not in proper state of mind or that he was unable to understand the nature of transaction. It is clearly established by way of evidence that defendant no1 deliberately executed the documents in favour of plaintiff with respect to the sale of the property.
CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 23/28
29. Since, no independent witness has been examined to prove the factum of loan or its repayment, the issue is not proved and therefore it is decided against the defendants.
Issue No(5) Whether the defendant no1 has signed the documents i.e. GPA, Will and other connected documents in favour of the plaintiff as a security of the loan. If so, what is its effects? OPD
30. In view of my findings with respect to issue no4, I hold that defendant no1 has failed to discharge the burden of this issue also and no proper evidence is brought on record to show that defendant no1 did not understand the nature of transaction or nature of documents executed by him. The defendant is only taking excuses to escape from the consequences of executing these documents. The issue is therefore decided in favour of the plaintiff and against the defendants. CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 24/28 Issue No(6) Whether the plaintiff is entitled a decree for specific performance as per the terms of the agreement to sell dated 28.03.2001? OPD
31. In view of my findings with respect to above issues, I hold that plaintiff is entitled to a decree for specific performance as per the terms of the agreement to sell dated 28.03.2001 and defendant no1 is directed to execute a regular sale deed in respect of property bearing Flat no. 18, BlockB, Amba Bagh, Kishan Ganj, Delhi, comprising of one room, M.P. Room, WC and bath room in favour of plaintiff in terms of agreement to sell dated 28.03.2001. The issue is answered in favour of the plaintiff.
Issue No(7) Whether the mortgage deed dated 11.08.2001 executed by the defendant no1 in favour of the defendant no.2 for securing loan Rs.2,00,000/ is liable to be declared as null, void and cancelled? OPP CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 25/28
32. In view of my findings with respect to the above issues, the plaintiff is entitled to specific performance of the agreement as he has paid the entire consideration amount and he is entitled to get the sale deed executed in terms of the agreement. Since, the defendant no1 has given all rights, title and interest in favour of the plaintiff with respect to the suit property by executing the agreement to sell, he had no authority to execute the mortgage deed subsequently. The plaintiff had agreed to sell all his rights, title and interest in the suit property in favour of the plaintiff for consideration and reduced himself to the status of a tenant in the property and therefore he had no right to execute the mortgage deed in favour of defendant no2. The said mortgage deed is therefore liable to be declared as null and void. The defendant no2 has not come forward to counter the claim of the plaintiff as no crossexamination of PW1 was done. There is no ground to disbelieve the consistent evidence of the plaintiff. The issue is disposed off in favour of the plaintiff and against the defendants.
RELIEF
33. In view of my observations with respect to the above issues, the suit of the plaintiff is decreed in terms for specific performance of CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 26/28 agreement dated 28.03.2001 that defendant no1 shall execute a regular sale deed in respect of property bearing Flat No. 18, BlockB, Amba Bagh, Kishan Ganj, Delhi, comprising of one room, M.P. Room, WC and bath room in favour of the plaintiff in terms of Agreement to Sell dated 28.03.2001. The mortgage deed dated 08.11.2001, executed by defendant no1 in favour of defendant no2 for securing loan of Rs. 3 Lakhs is declared as null and void. No order as to costs.
34. The suit is disposed of in aforesaid terms.
Decree sheet be prepared and file be consigned to record room. Announced in open Court on 10th Day of November, 2014.
(ANJU BAJAJ CHANDNA) Addl. Distt. Judge(Central)01, Tis Hazari Courts, Delhi.
CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 27/28 Satbir Bhardwaj Vs Narender Kumar Sharma C.S. No.154/2009 10.11.2014 Present: Counsel Sh. Om Prakash Verma for plaintiff alongwith plaintiff.
None for defendant.
Arguments heard.
Counsel for plaintiff submitted written arguments. Put up for post lunch session for order/judgment.
(ANJU BAJAJ CHANDNA) ADJ (Central)01, Delhi/10.11.2014 At 4.00 PM.
Present. Plaintiff in person.
Vide my separate judgment dictated and announced in the open court suit of the plaintiff is decreed on the terms therein. Decree sheet be prepared accordingly. No order as to costs.
File be consigned to record room.
(ANJU BAJAJ CHANDNA) ADJ (Central)01, Delhi/10.11.2014 CS No. 154/2009 Satbir Bhardwaj Vs. Narender Kumar Sharma 28/28